Going Postal -- Proving Mailing Again Proves Difficult for No-Fault Insurer

NO-FAULT – PROOF OF MAILING – STANDARD OFFICE PROCEDURE
Carle Place Chiropractic a/a/o Lorena Lopez v. New York Central Mut. Fire Ins. Co.
(Dist. Ct., Nassau Co., decided 5/29/2008)

Ugh. Another tedious proof of mailing case, this time going against the insurer.

Good reminder from Nassau County District Court Judge Andrew Engel, though, that there are three distinct methods to demonstrate proof of mailing:

1. to provide an affidavit from an individual with personal knowledge of the actual mailing;
2. where an acknowledgment by the adverse party that it received the subject document serves as an admission; or
3. where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed.

In this case, Nassau County District Court Judge Andrew Engel ruled that defendant New York Central Mutual failed to prove under Methods 1 & 3 that it had timely mailed seven NF-10's to the plaintiff provider based on the lack of medical necessity.

Although NYCM's Litigation Examiner alleged that she was "fully familiar with the facts herein based upon personal knowledge and review of the file that is maintained in the regular course of business by New York Central Mutual Fire Insurance Company", the court noted that her affidavit failed to indicate how she obtained this "personal knowledge." "Knowledge obtained upon a review of files and computer records, however, is not, as [NYCM's examiner] posits, 'personal knowledge.'"

Not sure whether this was a cut-and-paste undersight, but Judge Engel During noted that although MYCM's exminer's affidavit spoke of NYCM's general business practices as respects mailing in 2001, conspicuously absent from NYCM's examiner's affidavit was any allegation that she was familiar with NYCM's record keeping or mailing practices as it existed in 2006, the year in question. "Ms. Absher clearly has not demonstrated her knowledge of such practices and procedures as they existed at the time here in question and cannot establish proper proof of mailing of the denials in question." Judge Engel noted:

In essence, Ms. Absher describes the procedure as an employee taking the denial form, placing it in an envelope which is in turn placed in a bin in a central location in the office, then taken to a bin in the Defendant's mail room, the contents of which are subsequently taken from the mail room to the post office. When stripped of all of its excess verbiage, it appears that the Defendant's mailing procedure is to place the denial form in an envelope and to have someone subsequently mail same. The fact that the envelope containing the denial form is handled by a number of the Defendant's employees and makes a number of stops in the office before it is allegedly taken to the post office in no way ensures that the items are properly mailed. Absent from the Defendant's alleged office procedure is any indication that there exists a practice of comparing the names and addresses on the denial forms with that of the Plaintiff's billing, or the existence of a mailing list used to compare the names and addresses on the denial forms with the items mailed, or whether a list is maintained indicating the number of denial forms generated on a given day along with some identification of the matters in which the denial forms were generated, or whether anyone routinely checked to see if the total number of envelopes mailed matched the number of denial forms generated on a particular day, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service. * ** The use of any one of these practices or procedures would ensure the document's routine mailing. Without such safeguards, notwithstanding the fact that the Defendant follows the same procedure, there is no way for the efendant, or the court for that matter, to determine whether or not, or to even presume that all denial forms generated by the Defendant on a particular day are actually mailed. The procedure Ms. Absher describes does not take into account the possibility that an item of mail might get misplaced or lost anywhere between the desk at which it is printed and the United States Post Office. If this were to occur, under the practices and procedures described by Ms. Absher, no one would know and the Defendant would have no way of tracking the lost denial forms.

In addition to holding that NYCM failed to prove the mailing of the seven NF-10 forms, Judge Engel concluded that "[f]atally missing [from the negative IME report of NYCM's chiro is] any mention of the applicable generally accepted medical/professional standard and the plaintiff's departure therefrom."

Judge Engel then went on, in effect, to overrule his earlier decisions in Maple Medical Acupuncture, P.C. v. Motor Vehicle Accident Indem. Corp., 15 Misc.3d 1124, 841 N.Y.S.2d 219 (Dist. Ct., Nassau Co., 2007) and Elmont Open MRI & Diagnostic Radiology, P.C. v. Country-Wide Ins. Co., 15 Misc.3d 552, 830 N.Y.S.2d 886 (Dist. Ct., Nassau Co., 2007), to the exent that those decisions previously held that "[t]o make out a prima facie case, the Plaintiff would be obligated to establish the proper submission of the bills in question and the Defendant's failure to either pay or properly deny same within thirty (30) days of receipt thereof[.]" Instead, Judge Engel noted that "it is now widely recognized that plaintiffs establish 'a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no-fault benefits was overdue.'"

Finding that plaintiff had demonstrated that its claims were timely submitted and remained unpaid, coupled with NYCM's adjudged failed to prove mailing of its NF-10s, the court granted plaintiff's cross motion for summary judgment.

Note to no-fault insurers -- banish your no-fault examiners to the mailroom for a day. Or a couple. Or a week. Or at least give them a cook's tour of the mailroom. Give them personal knowledge. As much of, or more, personal knowledge than they ever wanted. The first-hand, paper cut, paper dusted, clackety machined kind of personal knowledge of your standard office mailing procedures. Think of it as occupational crosstraining. Or prophylactic LOE on an internal order, so to speak. It might come in handy.